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Why Viacom Likely Wins Viacom-Google Copyright Appeal

Viacom is likely to ultimately prevail in its appeal of the lower Court decision in the seminal Viacom vs. Google-YouTube copyright infringement case.

If one only reads either the lower court's decision or the press reports of it, without considering likely appellate arguments and the broader constitutional context of copyright protection, it is easy to missread the likely ultimate outcome here.

Both sides agreed to an expedited summary judgment process in the lower court, because both sides fully expected this case to ultimately be decided at the appellate level, and most likely by the U.S. Supreme Court.

Expect the Second Circuit Court of Appeals in New York to decide Viacom's appeal in 2011 and the Supreme Court to likely take the case and decide it in 2012 -- given how central this case is to maintaining copyright protection in the Internet age.

Why is Viacom likely to prevail on appeal?

Like Grokster Case: First, this seminal DMCAcase is analogous to court process outcome of the seminal Grokster case, where the video-sharing copyright-infringer Grokster originally won in the lower court and in the Ninth Circuit Court of Appeals, before losing unanimously (9-0) in the Supreme Court in 2005.

Grokster Precedent is Highly Relevant: Second, Judge Stanton summarily dismissed any legal relevance of the 2005 Supreme Court Grokster precedent that has the effect of law, despite the fact that Google-YouTube's video-sharing technology and behavior functionally produce the same copyright-infringing result that Grokster's video-sharing technology and behavior did.

By ignoring the Supreme Court's settled law here, the lower court's myopic logic implicitly would condone Grokster-like piracy -- if it is effectively laundered or fenced via a public website that ostensibly has other legitimate purposes.

It is unlikely that the Supreme Court will defend constitutional copyright protections with one user-video-sharing technology and not another.

That would be the functional equivalent of saying that it is only burglary if the thief absconds with stolen goods through the back window, but not the front door.

It is also unlikely that the Supreme Court will accept the perverse logic of the lower court, which rejected the relevance of the Grokster case essentially because the p-2-p offenders were total-pirates, while Google-YouTube is only a part-time-pirate.

This lower court logic would effectively eviscerate the Grokster Supreme Court precedent by condoning doing wrong, as long as one is also doing good.

Case law is replete with findings that theft is theft, it isn't reclassified as legal just because the entity that commits the theft has otherwise been engaged in legitimate business or activities.

Copyright is Constitutionally Protected: Third, the lower court decision effectively eviscerates constitutional copyright protections and the Copyright Act by condoning mass Internet copyright infringement by websites under the DMCA -- as long as they technically pull down specific offending copyrighted works when specifically-notified under DMCA procedures.

Probably the core fatal flaw in the lower Court's opinion is its narrow and myopic legal frame of the case as simply a narrow arbitration decision of technical DMCA take-down procedures and interpretations of words -- in contrast to a case on the merits of alleged willful and deliberate mass-infringement of copyrights under the Copyright Act to facilitate the creation of a extremely valuable, dominant, and lasting market-leading online video enterprise.

To listen to Judge Stanton's legal frame, the only thing that matters here is his ruling of whether Google had "specific" knowledge of copyright infringement, not just "general" knowledge of mass copyright infringement.

This is like saying those that willingly fence stolen property, or knowingly launder the ill-gotten proceeds from stolen property, are not involved in, or culpable for, an illegal conspiracy to steal property.

In approaching this case with an ever-narrowing legal lens, Judge Stanton's decision spirals away from the:

Essential context of the case -- that copyright protections are tethered directly to the U.S. Constitution; and

Important context of the purpose of the DMCA, which attempts to balance copyright protection with the need for liability protection for Internet Service Providers from users' actions that they do not control.

It was never Congress' intent to sanction the perverse Judge Stanton outcome of a de facto criminal safe harbor for those who are:

Well aware of mass copyright infringement on their platform;

Actively encouraging infringement for monetary gain;

Premeditatedly gaming the legal system to evade responsibility and accountability; and

Willing to steal up until the point that, and as long as, the party being stolen from does not formally complain of the theft with the "actual" serial #s of the stolen goods.

In putting all his legal eggs-in-one-basket, the DMCA's specific take-down obligations, the ruling effectively converts the DMCA into universal get-out-of-jail-free card for those who effectively fence or launder copyrighted works on a massive scale.

Judge Ignored the Facts: Fourth, Judge Stanton basically ignored most all the facts of the case.

While admitting in his opinion and order that: "a jury could find that the defendants not only were generally aware of, but welcomed copyright-infringing material being placed on their website"... the Judge basically ignored all of Viacom's evidence of Copyright Act abuses by narrowly absolving Google of all copyright infringement responsibility because Google immediately pulled down any infringing videos once formally notified under the DMCA safe harbor take down procedures.

YouTube was facilitating rapid growth of YouTube by encouraging mass uploads of copyrighted works right after the Supreme Court's unanimous Grokster decision;

Google was well aware that they were adopting a risky copyright infringement strategy in acquiring YouTube and adopting their infringement strategy to leverage its first mover market position; and

Viacom and Google were in active negotiations with Google-YouTube on a licensing deal for Viacom's infringed content for well over a year before they collapsed and Viacom filed DMCA takedown notices with Google-YouTube.

By totally ignoring the facts and the context of the case, the Judge's ruling is basically declaring "open season" on copyright holders.

Judge Stanton effectively has absolved bad actors of any need to respect copyright, by encouraging them to infringe first, engage in and slow roll negotiations with copyright owners, and then take down the copyrighted works only if and when asked -- and after the bad actor has built up a user base and a business around the infringing behavior.

This legal frame is the functional equivalent of a reverse statute of limitations and no Copyright Act, where a copyright owner has no protections until they comb the Internet, discover, and specifically file a formal and specific DMCA takedown notice.

For Judge Stanton's ruling to withstand appeal, the Second Circuit Court of Appeals and/or the Supreme Court would have to effectively rule that the DMCA trumps/supercedes the Copyright Act and the U.S. Constitutional protections of copyright. That is not likely.

In sum, Viacom is likely to win on appeal because of the import and relevance of the Supreme Court's Grokster precedent, and because Judge Stanton essentially ignored the Copyright Act, the Constitution, and the facts of the case.